Excerpt: - - 8. the law on the point is well settled. to this general rule, however there is a well-established exception that if there was a lack of inherent jurisdiction in the court which had passed the decree, ot for some other reason the decree is a nullity, the executing court must refuse to execute it. it is enough in this connection to cite the well-known decision of the privy council in 'jnanendra mohan v. in the same way the omission to obtain a succession certificate is good ground of appeal, but if the decree is not appealed from, in my opinion it remains a valid decree and cannot be regarded as a nullity......property could be made a rule of the court without its being registered, and therefore the decree passed on the award was a nullity. that is a case which to our mind iscovered by the terms of bhaduri's case (a) which also dealt with a decree passed on an award, the only difference being that here the nagpur high court referred to its own decision on the point of law instead of the provisions of the code of civil procedure.16. let us now turn to the circumstances of the present case in the light of these principles. the argument on behalf of the appellant is that the trial court lacked inherent jurisdiction inasmuch as it decreed a suit which should not have been decreed in view of the provisions of section 44 of the insolvency act. thus put, the argument is on the face of it.....

Judgment:

Wanchoo, C.J.

1. This is an execution first appeal by the judgment-debtor Anraj against the order of the District Judge, Pali.

2. The facts, which have led to this appeal, are these:

3. Decree-holder respondents Bijairaj etc., had filed a suit against Anraj and others for recovery of Rs. 19,151/- This suit was decreed on the 26th of July, 1939, by the District Judge of Nagpur. There was no appeal by the defendants in the suit, and that decree has become final. The decree was put in execution by the decree-holdersrespondents in October, 1949. Thereupon, an objection was raised by the judgment-debtors that the decree was not capable of execution as it was a nullity. That objection has been dismissed, and the present appeal is against the dismissal of that objection.

4. The grounds, on which the objection was made, were these:

5. The judgment-debtors contended that they had been declared insolvent by a court at Bangalore, and had been given an absolute discharge on the 6th of September, 1943. In those insolvency proceedings they had shown this particular debt which was the basis of the decree under execution as this was a debt provable in insolvency; and as they were discharged absolutely in 1943, the District Court had no jurisdiction to pass a decree against them in 1949, and the decree was a nullity.

6. The decree-holders, however, contended that the point that the suit was not maintainable because of the absolute discharge granted by the court at Bangalore was specifically raised before the District Court which passed the decree under execution, and in spite of there being an issue on the point the District Court in question passed a decree in favour of the respondents. This amounted to deciding the issue raised against the appellants. The District Court, which passed the decree in 1949, had jurisdiction to decide that issue, and the decree under the circumstances could not be a nullity. As such the executing court could not go behind the decree, and must execute it.

7. The first question, therefore, that arises for determination in this appeal is whether the point, which has been raised, could be raised at all in execution proceedings in the circumstances existing in this case.

8. The law on the point is well settled. The general rule is that an executing court cannot go behind a decree. It must take the decree as it is, and proceed to execute it. The decree might have been correctly passed, or it might be erroneous or npt according to law, but it is none-theless binding on, and conclusive as between, the parties, unless set aside on appeal, revision or other appropriate proceedings. The function of the executing Court is to enforce and execute it and not to question its correctness. To this general rule, however there is a well-established exception that if there was a lack of inherent jurisdiction in the Court which had passed the decree, OT for some other reason the decree is a nullity, the executing court must refuse to execute it.

It is not necessary to refer to authorities in detail in support of this summary of the law relating to the power of the executing court to go behind the decree. It is enough in this connection to cite the well-known decision of the Privy Council in 'Jnanendra Mohan v. Rabindra Nath', 60 Ind App 71: (AIR 1933 PC 61) (A). All other cases are merely an application of the principle laid down in this case, and it is a question for consideration in each case whether a decree can be held to be a nullity by the executing court. It is only within certain very narrow limits that the executing court has got this power. We may refer to the following cases to consider the limits of this power.

'A Judge in a suit upon a cause of action 'is bound to dismiss the suit, or to decree for the Defendant, if it appears that the cause of action is barred by limitation. But if instead of dismissing the suit he decrees for the Plaintiff, his decree is valid, unless reversed upon appeal; and the defendant cannot, upon an application to execute the decree, set up as an answer 'that the cause of action was barred by limitation.'

This case is an illustration which shows how narrow is the power of the executing court to go behind the decree. Section 3 of the Limitation Act lays down that it is the. duty of the court to dismiss a suit if it is barred by limitation; but in spite of that provision of the law if a court having jurisdiction wrongly decrees the suit, the decision is merely erroneous, and the mistake does not affect the jurisdiction of the court.

10. The next case, to which reference may be made, is Abdul Majid v. Shamsherali Fakruddin, AIR 1940 Bom 285 (C). That was a case where a suit had been decreed by the court in spite of the provisions of section 214 of the Succession Act. Section 214 provides that no court shall pass a decree against a debtor of a deceased person for payment of his debt to a person claiming on succession to be entitled to the effects of the deceased person or to any part thereof, except on the production, by the person so claiming, of, amongst other things, a succession certificate.

But in spite of this provision a decree was passed. It was then challenged in execution that the decree was a nullity because it was passed against the provisions of section 214 of the Succession Act. The Bombay High Court held that that was not so, and the following observations appear at page 286-

'If the Court does, in breach of those provisions, improperly receive documents in evidence, that is an error which can be corrected in appeal, but it does not render the decree a nullity. In the same way the omission to obtain a succession certificate is good ground of appeal, but if the decree is not appealed from, in my opinion it remains a valid decree and cannot be regarded as a nullity.' .

11. Another case to which reference may be made is 'Radha Mohan v. Mrs. Jane Hilt', AIR 1945 All 400 (D). There also a decree had been passed against the provisions of section 214 of the Succession Act and the view taken by the Bombay case (C) cited above was approved.

11-a. In Girwar Narayan v. Kamla Prasad, AIR 1933 Pat 104 (E), the distinction between an inherent want of jurisdiction and want of jurisdiction on grounds which have to be determined by the Court itself is pointed out, and it is only when there is inherent want of jurisdiction that it can be said that the decree was a nullity. For instance, if a Munsif decrees a suit of Rs. 5,000/- in value when his pecuniary jurisdiction is only Rs. 2,000/-, there is an inherent want of jurisdiction and the decree is a nullity and can be ignored by the executing court. On the other hand, if a court proceeds to try a suit which is barred for instance by the principle of res judicata. however erroneous the decree of the court may be, it cannot be challenged in execution.

12. Lastly, we may refer to Laxman Madhoji v. Dhamori Co-operative Credit Society, AIR 1933 Nag 211 (F), where it was held that an executing Court was entitled to refuse to execute the decree in particular cases if the Court which passed the decree had no jurisdiction topass it. But the fact of the Court having no jurisdiction to pass a decree ought to appear on the face of the decree or must be capable of being gathered without the necessity of an enquiry into facts.

13. An examination of these cases reveals that it is only within very narrow limits that an executing court can go behind a decree and these limits are where there is inherent lack of jurisdiction, or where for some reason, as for example when a decree is passed against a dead person, the decree becomes a nullity. If a point is raised as a defence to a suit, and the defence does not affect the inherent jurisdiction of the court to try the suit the decree cannot be a nullity. A mistake by the court in disposing of the defence would not render the decree a nullity. It will tote a valid decree, though it might be set aside on proper proceedings by way of appeal or revision.

14. Learned counsel for the appellant relied on certain cases to which we may briefly refer. These are, however, all cases of special jurisdiction vide-

Intizamia Committee Gurdwara Darbar Sahib v. Central Bank of India Ltd., Amritsar AIR 1938 Lah 129 (G). This is a case of Punjab Sikh Gurdwaras. Act which conferred a special jurisdiction on the Sikh Gurdwara Tribunal. Abdul Ghani v. Anjuman-i-Imdad Qarza Bahami Chak No. 127 R.B., AIR 1942 Lah 237 (H). It was a case of Co-operative Societies Act and the powers given to the liquidator. Karashiddayya Shiddayya Bennur v. Shree Gaianan Urban Cooperative Bank Ltd., AIR 1943 Bom 288 (I). It was also a case of a co-operative society and the power given to the Registrar. In these cases it was held that if the conditions precedent to the exercise of jurisdiction by these tribunals were not present, the decree would be a nullity, and it would be open to the civil court, whether in a suit or in execution proceedings even if the orders passed by the tribunals were made executable as civil court decrees, to go behind the decrees. The reason for this is obvious. It is the civil court which has the power to deal with civil matters under Section 9 of the Civil Procedure Code.

Any other tribunal derogates from the powers of the civil court to deal with civil matters, and if the decree of that tribunal is made executable by the civil court, the civil court is bound to see whether the tribunal had passed the decree within the four corners of the law giving it jurisdiction. These cases, therefore, have no application to the present case which was decided by a civil court.

15. The last case to which reference was made on behalf of the appellant is Uttamchand Motilalji v. Wasudeo Deorao Digambar, AIR 1946 Nag 311 (J). In this case it was held that the executing court, as a general rule, was not entitled to question the validity of a decree. But where it was patent that the decree was in fact passed without jurisdiction or was a nullity the executing Court was entitled to question the validity of the decree. There can be no objection to the statement of the principle in this case.

The facts were that a certain award was made a. rule of the court without its being registered. The learned Judges held that a Full Bench of the Court had decided that no award relatine to immovable property could be made a rule of the court without its being registered, and therefore the decree passed on the award was a nullity. That is a case which to our mind iscovered by the terms of Bhaduri's case (A) which also dealt with a decree passed on an award, the only difference being that here the Nagpur High Court referred to its own decision on the point of law instead of the provisions of the Code of Civil Procedure.

16. Let us now turn to the circumstances of the present case in the light of these principles. The argument on behalf of the appellant is that the trial court lacked inherent jurisdiction inasmuch as it decreed a suit which should not have been decreed in view of the provisions of section 44 of the Insolvency Act. Thus put, the argument is on the face of it impossible to uphold for there can be no question of lack of inherent jurisdiction in the District Court at Nagpur simply because it did not decide an issue as to the application of section 44 of the Insolvency Act.

What after all is Section 44 of the Insolvency Act? It provides for the effect of an order of absolute discharge. Sub-section (1) lays down that an order of discharge shall not release the insolvent from certain debts specified therein. Then comes Sub-section (2) which says that save as otherwise provided by Sub-section (1), an order of discharge shall release the insolvent from all debts provable under this Act. Then comes Sub-section (3) which also provides for an exception to Sub-section (2).

There is nothing in Section 44, which bars thejurisdiction of a civil court to entertain a suitand decide it provided it has the necessary inherent jurisdiction. It is not in dispute that theDistrict Judge of Nagpur had the inherent jurisdiction to decide this suit for it had sufficientpecuniary powers and had territorial jurisdictionalso. It seems to us therefore that section 44 of,the Insolvency Act could only be urged as a defence by a defendant, and it does not in anyway raise the question of the inherent jurisdiction!of the court.

A defence under Section 44 is, to our mind, not different from a defence, say of limitation, or of res judicata, or under Section 214 of the Indian Succession Act. Such a defence, if raised, will be decided by the court where the suit is pending. If the decision is wrong, or if for some reason or other no decision is given as seems to be the case in the present case, the remedy of the person who complains against the decision is to file an appeal or revision or take such other action as the law may provide to correct the error. But he cannot say that the decree is a nullity in execution proceedings for there is no question involved of the inherent jurisdiction of the court to pass the decree.

17. It may also be mentioned that the defence under Section 44 also involves questions of facts, namely that the case does not come within the exceptions contained in Sub-section (1) and Sub-section (3), and that the debt was of such a nature as could be proved in insolvency proceedings.

18. In this case, we find that the appellant had raised the defence of Section 44 of the Insolvency Act before the District Court at Nagpur, and a specific issue was framed on this point. For some reason which is not clear this issue was not specifically decided. But the court proceeded to pass a decree against the appellant. The remedy of the appellant under the circumstances was to appeal against the judgment of the District Court for a first appeal lay to the High Court.

There was no question of want of inherent jurisdiction of the court, and the decree couldnot, under the circumstances, be treated as a nullity by the executing court, and such a point could not be raised in the executing court in the circumstances of this case. We are, therefore, of opinion that the executing court was right in the view that that kind of objection could not be taken before it.